Balch v. Wurzburger

The record of the proceedings upon the trial begins as follows: “The court on motion of the plaintiff’s attorney allowed the amendment of the summons in the present suit by adding to the amount claimed, the amount named in the summons in the other suit between the same parties and grants an amendment to the complaint by making the cause of action a breach of contract instead of for salary.” By this amendment two actions, one begun December 19th, 1893, for §30, and one commenced January 24th, 1894, for $90, were in effect consolidated and the defendants in the second action were deprived of the defense which they had set up in that case of a former action pending. The amount claimed in each action separately was not sufficient to permit the defendant to remove it to this court; but after the amendment the amount was increased to a sum which did entitle defendant to do so. But he was by the amendment deprived of any opportunity to claim that right. This of itself deprived them of a substantial right, and ought not to have been granted for that reason. Besides the complaint in each of the two actions was for wages, while the amendment changed the cause of action to one for a breach of contract. In Dows v. Morrison, 2 Misc. 54 ; 49 St. Rep. 143 , we held that it was error for a justice of a district court to add by amendment at the trial a cause of action for breach of contract, to a cause of action for salary due. Here two causes of action for wages or salary were practically consolidated and changed to a cause of action for breach of contract, which makes the error greater rather than less. Ho court has power to amend pleadings at the trial so as to introduce a new and entirely different cause of. action. In Dexter v. Ivins, 133 N. Y. 551 ; 44 St. Rep. 244 , referring to an alleged change from an action for salary to an action, for damages for wrongful discharge, the court refused to reverse the judgment on the ground that no such change as was charged and relied upon by the appellants had in fact been made, but distinctly intimated that if such had been the case it would have been error. See also Cumber v. Schoenfeld, 16 Daly, 454 ; 34 St. Rep. 770 .

Bischoff, J., concurs.